连续签订两次固定期限劳动合同后用人单位应无选择权--杨某诉雅安烟草公司终止劳动合同案评析

No Right for Employers to Choose after The Signing of Two Successive Fixed-termed Labor Contract

劳动合同法规定了在连续订立二次固定期限劳动合同,符合条件的劳动者提出或者同意续订劳动合同的,除劳动者提出订立固定期限劳动合同外,应当订立无固定期限劳动合同。但在实践中,有用人单位选择在第二次固定期限劳动合同到期时,提出与劳动者终止合同,而不考虑劳动者提出签订无固定期限的要求;司法实践中也有支持用人单位主张的裁决。本文从一个具体劳动争议判例出发,从文义解释、立法目的和立法原则三个层面探讨不宜赋予用人单位选择权,以此实现长期稳定的劳动关系,并在反思的基础上,对用人单位提出了建议。

Labor Contract Law provides for such workers can continuous concluded in the secondary fixed-term labor contracts. An employer and an employee may conclude an open-ended employment contract upon reaching a negotiated consensus. If an employee proposes or agrees to renew his employment contract, a fixed-term employment contract was concluded on two consecutive occasions. But in practice, there are employers selected when the second fixed-term labor contract expires, proposed to terminate the contract with the employee, regardless of the employee proposes to sign open-ended employment contract; judicial practice also supports the employer claims ruling. From a specific case of labor disputes, and from the three levels such as the literal interpretation, the legislative intent and legislative principles that should not be given to employers to explore options. In order to achieve long-term and stable labor relations, give some advises based on the employer reflections.